Tuesday, January 02, 2007

Dec 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 04-1200, consolidated with No. 04-1201, et al. The case consolidates challenges to the Final Phase 1 Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard, 69 Fed. Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (hereinafter 2004 Rule), promulgated by the Environmental Protection Agency pursuant to the Clean Air Act (CAA or the Act), 42 U.S.C. § 7401 et seq. The Appeals Court said in a unanimous ruling, "Because EPA has failed to heed the restrictions on its discretion set forth in the Act, we grant the petitions in part, vacate the rule, and remand the matter to EPA for further proceedings."

In describing the arguments, the Appeals Court said in these consolidated petitions, a host of parties challenge the 2004 Rule and related EPA decisions on rehearing. No petitioner disputes that the eight-hour standard must be implemented; instead, they differ as to how quickly it must be attained and under what constraints. Parties with similar concerns were grouped for briefing purposes, leaving four principal opponents to various aspects of the 2004 Rule: (1) the State petitioners, (2) the Environmental petitioners, (3) the Industry petitioners, and (4) the State of Ohio. A subset of the petitioners also intervened to support different aspects of the 2004 Rule to which other petitioners objected.

To summarize the challenges the Appeals Court said: The State and Environmental petitioners contend that EPA’s understanding of the interrelationship between Subpart 1 and Subpart 2 contravenes the Act and led to arbitrary and capricious choices reflected in the 2004 Rule. The State of Ohio contends that EPA erred by establishing an unreasonable timeframe for attainment. One Industry petitioner, the National Petrochemical & Refiners Association (NPRA), contends that EPA’s translation of the statutory one-hour Table 1, is flawed and thus arbitrary and capricious. Another Industry petitioner, the Chamber of Greater Baton Rouge (Baton Rouge), contends that EPA lacks authority to continue to enforce any one-hour requirements against areas with lower eight-hour classifications.

The State and Environmental petitioners, conversely, contend that EPA should have retained more of the one-hour control requirements to prevent backsliding, and the Environmental petitioners contend that EPA should not have revoked the one-hour standard at all.

In its 40-page opinion, the Appeals Court provides a lengthy review and analysis of the arguments and concludes, "Consistent with Whitman [Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 482-86 (2001)] and the Act, we grant the State petition and the Environmental petition, except with respect to the withdrawal of the one-hour NAAQS; we also deny the Industry petitions and we dismiss the Ohio petition. Accordingly, we vacate the 2004 Rule and remand the matter to EPA."

In a release, Earthjustice, who brought the court challenge on behalf of the American Lung Association, Environmental Defense, Sierra Club, and Natural Resources Defense Council said, "the Court held that EPA violated the Clean Air Act in relaxing limits on smog-forming pollution from large power plants, factories, and other sources in cities violating health standards." Earthjustice argued that EPA's action made no sense because it came after the Agency found that the previous ozone standard was too weak to protect public health. They said "The rule allowed more pollution in cities where the air was already unhealthy to breathe." Cities that were at risk for increased pollution according to Earthjustice included Chicago, Houston, Milwaukee, New York, Atlanta, Baltimore, Baton Rouge, Philadelphia, Sacramento, Washington (DC), Beaumont-Port Arthur, Boston, Dallas, Providence, and San Joaquin Valley, CA, among others.

U.S. Senator Barbara Boxer (D-CA), incoming Chair of the Senate Environment and Public Works Committee, issued a statement about the decision saying, "The court today ruled unanimously that EPA has failed to heed the restrictions on its discretion set forth in the Act, and therefore that the rule is invalid." Boxer said, "I am pleased that the Court of Appeals has seen through EPA’s transparent attempts to weaken implementation of the Clean Air Act’s rules for smog. This unanimous opinion from the Court of Appeals confirms that EPA’s approach is illegal. EPA must now throw out this rule and start anew. Because of the efforts of the South Coast Air Quality Management District, which brought this case, our citizens will not be forced to accept EPA’s plans to relax the smog rules. Smog kills people, it increases asthma and other respiratory illnesses, and it remains a major public health threat in many areas of the country. Sadly, we have once again had to rely on the court to tell EPA how to read the text of the Clean Air Act in a way that protects people, not polluters. When the new Congress convenes, we will scrutinize EPA’s approach to clean air very carefully to ensure that the health of our families is protected.”

Other parties challenging the EPA rules as too weak were the Clean Air Task Force (on behalf of the Conservation Law Foundation and Southern Alliance for Clean Energy), Louisiana Environmental Network, South Coast Air Quality Management District, and a coalition of states including Massachusetts, Delaware, Maine, New York, Pennsylvania, and the District of Columbia.